Battle over a dilapidated firehouse turns into First Amendment case

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WILKES-BARRE, Pa. — Overlooking this 200-year-old city is a neighborhood called the Heights, where simple frame homes built for immigrant coal miners, brewery workers and railroad hands after the Civil War stand cheek by jowl along sharply inclined streets and alleyways.

There's little open space among the singles, twins and rowhouses here. One consequence: If a house catches fire, adjacent structures are at risk, too. Seconds count when firefighters get a call.

Generations of Heights dwellers have known this. So when the mayor decided to shutter the neighborhood's lone, dilapidated firehouse — saying it required costly repairs that Wilkes-Barre could ill afford — Denise Carey protested. Loudly.

Thus began a long and spirited campaign by the lifelong Heights resident to save the East Fire Station. Along the way, she became what some politicians dread most: An activist.

"I wanted all of us to be safe," Carey says now, four years later.

So, too, did Mayor Tom Leighton. But he insisted the city's other firehouses could protect the Heights.

He complained Carey was misleading people — and he concluded she had to be stopped.

Their struggle, which finally played out in a courtroom at the end of last year, boiled down to a First Amendment issue:

When citizens petition their government, can the government push back? And if so, how hard?

Risk of fire well understoodThe risk of fire was well understood by Carey's family. When her husband Tom was 16, his house burned to the ground. Though not in the Heights, it, too, sat atop a hill that became dangerous in winter weather.

Carey, a 46-year-old social worker, took comfort in the East Station, which was just up the street. At a moment's notice, firefighters could respond to her home, or to her elderly parents' home around the corner.

In October 2004, Leighton was still settling into his new job at City Hall. The real estate broker and three-term city councilman had become mayor the previous January on a pledge to revive the sagging downtown and crack down on crime in this northeastern Pennsylvania town of 41,000.

"I will make the difficult decisions," Leighton told his new constituents.

What to do with the Heights' firehouse would turn out to be one of those tough decisions.

On Oct. 19, a storm pounded the city and exposed serious problems at East Station, including roof leaks that sent rainwater through light fixtures. The next day, the fire chief declared the building a fire hazard and closed it.

"If the money's not insane, we'll amend some things and get it fixed as quickly as possible," Leighton promised, and hired an engineering firm to study how much repairs would cost. The answer: between $241,000 and $340,000.

The mayor said the city didn't have that kind of cash.

Neighbors banded together
The estimate seemed ridiculously high to Carey and her neighbors. Besides, people were willing to donate time and materials to repair the roof. What was the problem?

The neighbors banded together as Citizens for Safety and set out to change the mayor's mind. The fledgling activists packed City Council meetings, staged protest marches, and blanketed the Heights with signs. To raise money for repairs, they sold T-shirts that said, "Come on mayor light my firehouse."

"The closing of East Station was wrong, and it was reckless," Carey lectured the mayor at one council meeting. "You put about 3,000 children, elderly and disabled people at what we believe is a serious risk." She and others especially worried about the difficulty of fire trucks climbing the slippery hills in winter.

Carey's group had the support of the firefighters' union and some council members, but Leighton remained adamant. Years of neglect had taken their toll on the firehouse. He had to be a good steward of taxpayers' funds.

"I can only spend the money we have," the mayor told the protesters.

After months of failed efforts at persuasion, a member of Citizens for Safety had an idea. Why not alter the city charter to allow a referendum on the East Station? That way, residents would have the final say — not the mayor.

A "last resort," Carey called it, and she and her allies began circulating a petition to place a question on the November 2005 ballot. Required to get 975 signatures to qualify, they wound up submitting 1,300 to the Luzerne County Board of Elections.

Ballot push turns contentiousAs Carey came to see it, direct democracy was an opportunity for citizens to assert more power for themselves. At the same time, this approach threatened to take authority from the mayor's office.

Leighton told his lawyer to stop the activist. "She can go (expletive) herself," he allegedly said, according to later trial testimony, a claim he denied under oath.

Leighton argued that Carey and other canvassers had deliberately misled residents by telling them they were signing a petition to reopen the firehouse when, in fact, the petition's intent was to revamp the city charter to add the tools of initiative and referendum.

Carey hotly denied any attempt to mislead. Perhaps some circulators weren't as clear as they might have been, but the petition itself spelled everything out, she said.

The mayor asked a judge to toss Carey's petition. But a few days before the adversaries were to square off in court, an unexpected development changed everything: A canvasser pulled all of the hundreds of signatures he'd collected, citing technical flaws. Without them, Carey knew the petition could not qualify for the ballot. As she sent a letter of withdrawal to the election board, Carey thought she had let everyone in the Heights down.

But the fight was about to take another dramatic turn.

Since the effort to change the charter was now moot, Carey thought the hearing on the city's challenge would be just a formality. Instead, Luzerne County President Judge Michael Conahan demanded to know why no one had informed him about Carey's motion to withdraw. He had cleared his schedule for a hearing that was no longer needed.

"Does anybody recognize that we're all kind of busy here?" he hollered.

"I do recognize that, sir," Carey replied meekly. She had never appeared before a judge before and was petrified.

City's legal bills mount
Leighton's lawyer also responded, telling the angry judge that the city had wasted time and money fighting Carey's petition — and that the activist should have to pay the city's legal bill.

"The system put Carey in her place," fumed Casey Jones, then a columnist for the Times Leader. "Did you get the message, folks? Resistance will not be tolerated. Pay your taxes, peons, and keep your mouths shut."

The local Green Party offered to lie down in front of Carey's house if the sheriff tried to sell it to satisfy the debt.

Others showed their support in less public ways. Occasionally, Denise or Tom would find a cash in the mailbox. An elderly woman sent three dollar bills, accompanied by a letter saying she wished she could afford to send more. There was no return address.

Leighton, who was taking a public-relations beating, complained, "This is not about making someone a martyr."

In a letter to the editor, he wrote that Carey and her group engaged in "deception" and "committed a fraudulent act against the City of Wilkes-Barre by misleading residents and violating the election process. They must be held accountable for their actions."

When Carey read this, she thought: First the mayor raided my pocketbook, and now he's trashing my reputation. ("Is it true what they're saying about you?" asked a concerned client in her social work practice.) A steely resolve began to replace Carey's ambivalence about an appeal. She and Tom met with a pair of out-of-town lawyers.

Cynthia Pollick, who had years of experience in civil-rights work, listened to Carey's tale with growing outrage. Attorney Lisa Welkey had a similar reaction: "I absolutely believed it was a way to silence her, to teach her a lesson about challenging local government."

Lawsuit claimed retaliationOthers besides Carey picked up on the lesson. No one talked about reopening the firehouse anymore, said Jim McCarthy, a longtime city councilman and Heights tavern owner. Bar patrons told him they didn't dare speak out.

So it was decided: Welkey would file an appeal with Pennsylvania Commonwealth Court, while Pollick would sue Leighton and the city in federal court.

Leighton, the suit claimed, retaliated against Carey for exercising her First Amendment freedoms of speech, association, and petition. He abused his power by using the legal system to silence dissent, "stifling her efforts to speak out against the mayor's administration."

Carey demanded a jury trial. She wanted the mayor to learn a lesson of his own.

As the legal wrangling began, Wilkes-Barre received a sad reminder of what got this prolonged dispute started.

A fire broke out in the Heights.

Although it wasn't clear that a functioning East Station would have made a difference, the blaze claimed three homes.

Good news about legal billThe legal cases dragged on. In January 2007, Carey got good news when Commonwealth Court overturned Conahan's order as unjustified. She was off the hook financially.

And finally, on a chilly November day in 2008, a jury took up the activist's federal case in Scranton.

It was only 20 miles from the Heights, but Carey had come a much greater distance. She had started this journey as a middle-aged professional, church leader and mother of four. She became an activist. Now, as she mounted the witness stand, she was a First Amendment champion.

"I'm here because I tried to do something good for my area, my community, and I was punished by the mayor," Carey began her testimony.

Unburdening herself, she talked about the importance of the East Station. About the Citizens for Safety, the endless council meetings, the petition drive. About that horrible day in Conahan's courtroom. And, finally, about the mayor's public comments about her.

"I just felt absolutely beaten by them," Carey said. "They already had their 11,056-dollar judgment, and it's more salt into the wound. Call her a fraud and call her a liar and deceiver and illegal. And that was not for just my eyes to see" — but the whole town.

Then it was the mayor's turn to testify.

Duty-bound to protect city charterLeighton, who had won re-election in 2007, told jurors he was duty-bound to protect the city charter from a legally suspect attempt to change it.

"That is why sanctions were given to Ms. Carey, because the petitioners circulated that petition in a fraudulent manner," Leighton said.

Why had he written the letter to the editor? Carey's attorney, Pollick, asked.

"I had to defend the actions of what took place in the city of Wilkes-Barre and let the people know that I was protecting the city charter," Leighton said.

"And you don't have remorse for writing a letter to the editor on a citizen sitting here today, correct?"

"There's no reason to have remorse," Leighton replied. "Everything that's in my letter is true."

In her closing argument, Pollick depicted a mayor who couldn't tolerate dissent.

To Leighton's attorney, Mark Bufalino, the case was about a citizen's dishonest attempt to change city government.

As the jury of four men and four women begin deliberating, Carey paced the courthouse corridor, went outside to smoke, then paced some more. The jurors were out 4 1/2 hours before reaching a decision. U.S. District Judge Thomas I. Vanaskie studied the verdict slip, then read each question.

Did Leighton retaliate against Carey by seeking attorneys' fees?

Yes.

Did he retaliate by writing a letter to the editor and making other public statements?

Yes.

Were his actions spurred by "evil motive or intent," and did they display "reckless or callous indifference" to Carey's First Amendment rights?

Yes.

Then came the award: $2,000 for lost earnings, $15,000 for emotional distress, and $50,000 in punitive damages — a total of $67,000, or more than six times the amount the city had sought from her.

'A win for the community'Tears rolled down her face as she mouthed "thank you" to the jurors, many of whom smiled back.

"This is a win for the community," she told reporters afterward. "Now no one has to be afraid of speaking up."

Weeks later, sitting at her kitchen table, she wonders if that's really true.

"I don't know if anybody wants to rush in there and test the waters again. I'm certainly gun-shy about it," she says. "I feel very bad saying that. I wish it wasn't so. I only hope eventually this verdict will change that thinking, not only for me but for other people."

Carey hasn't received the money. The city has filed an appeal. Attorneys for the parties are discussing a settlement. Still, she says, no one can take away the jury's verdict.

The East Station, meanwhile, remains shuttered. A few weeks ago, the city sold the building for $20,000.

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